E-Discovery Law Review : Electronic Discovery Lawyers & Attorneys : Cozen O'Connor Law Firm : Data Preservation & E-Discovery Disputes

The situation is not terribly uncommon.   You terminate an employee for failing to meet performance standards, and the employee sues the company for discrimination or wrongful discharge, claiming that the reason given by the company was truly a pretext for an otherwise unlawful motive.    

To bring this situation into 2010, suppose your CFO is roaming the Internet one night after your former employee’s lawsuit was filed, and discovers evidence that that employee had engaged in some form of misconduct that clearly would have resulted in his termination regardless of his poor performance.    Can you rely on that evidence as a basis for the termination of your former employee even after he is already gone and the lawsuit has started?

Depending on your jurisdiction and the facts in your particular situation, you may be able to use the “after-acquired evidence” doctrine as a defense to your former employee’s claims. The defense was first created by the United States Supreme Court in 1995 to limit or altogether preclude an employee from obtaining remedies due to a claimed unlawful termination if the employer later acquired evidence of wrongdoing that would have led to the termination of the employee anyway.

This summer, courts have continued to apply the “after-acquired evidence” defense to benefit employers.   For example, on July 16, 2010, a federal court in North Carolina applied the defense when an employer learned during discovery in a lawsuit that an employee may have violated expense reimbursement policies.   The court in Rinaldi v. CCX, Inc. ruled that the following elements must be established for the defense: (1) the employee was guilty of some misconduct about which the employer was unaware, (2) the misconduct constituted an act of dishonesty, gross neglect of the employee’s obligations, or an illegal act, and (3) the employer would have discharged the employee for cause if it had known about the misconduct.

On August 17^th, a federal court in California in the case of First v. Kia of El Cajon permitted an employer to serve subpoenas on a former employee’s former employers on the ground that “[f]ormer employment records are relevant to the after-acquired evidence defense available in Title VII employment discrimination cases.” And on that same day, a federal court in Texas in the case of Garza v. Mary Kay, Inc. allowed the employer to proceed to a jury on its defense that evidence that the employee “collected and removed confidential documents” while previously employed, but about which the employer learned after termination, could be relied upon after the fact to justify the termination.   The jury was, however, entitled to also determine the employee’s response to that defense that the employer “had never before terminated an employee for the same behavior.”

Employer Take Away:   What should you as an employer take away from this development?   We have already suggested to you in prior posts that social media can be a valuable tool when defending a lawsuit brought by a former employee.   One significant way is to look for evidence through social media that would support an otherwise legitimate reason for terminating the employee, even if that reason was not known and articulated at the time of termination.

For example, perhaps a LinkedIn profile demonstrates that the individual did not work for an entity identified on an application for employment with your company, or did not have the experience represented on your application.   Perhaps other posts by the individual boast about, or demonstrate the existence of, theft of trade secrets or competition during the prior employment with your company, or otherwise reflect that the individual violated a policy of your company while employed. Or maybe evidence found through social media can belie the reason given to you for the employee’s separation from a prior employer.

The ability to raise and rely upon the “after-acquired evidence” defense may presuppose the existence of a policy (or statement on the application itself) that clearly identifies your company’s right to terminate for the after-acquired reason.    You should also determine whether you can demonstrate to the Court that others in the past had in fact been terminated on similar grounds. Just another reason why it is important for you to maintain policies that say what you want them to say, and that are enforced effectively and consistently.

• Email This
• Print
• Comments/Questions
• Trackbacks

Just last week, Mary Madden, Senior Research Specialist of the Pew Research Center in Washington, D.C., issued a very insightful report entitled “Older Adults and Social Media: Social Networking Use Among Those Ages 50 and Older Nearly Doubled Over the Past Year” (http://pewinternet.org/Reports/2010/Older-Adults-and-Social-Media.aspx).   The report offers a look into a significant trend, as well as a timely reminder for employers to make sure that age is properly addressed in their employment-related policies and decisions.

We begin with two axioms: First, the number of potential and current employees using some form of social media continues to increase dramatically.   Second, whether due to the state of our economy, or the fact that members of our society are both staying healthy and living longer, the current workforce is getting older.    Madden’s report for the Pew Research Center ties together these two assertions, with remarkable data and conclusions. For example:

·                     “Social networking use among Internet users ages 50 and older has nearly doubled – from 22% to 42% over the past year.”

·                     “Half (47%) of Internet users ages 50-64 and one in four (26%) users ages 65 and older now use social networking sites.”

·                     “One in ten (11%) online adults ages 50-64 and one in twenty (5%) online adults ages 65 and older now say they use Twitter or another service to share updates about themselves or see updates about others.”

·                     Among the implications of rising social media use by older adults is the increased use of social media for those who are looking to “embark on a new career”, and, more particularly, for those older adults looking to social media “for professional networking, continuing education, and political participation.”

Employer Take Away:   What should every employer take away from this development? No longer can the older generation of employees be ignored, or summarily dismissed as either being “technology illiterate” or too “old school” for new social media. It is, therefore, critical for employers to understand the extent to which there is an aging workforce, and that the rules pertaining to the use of social media in employment-related decisions apply equally to all employees, regardless of their age.

(1)        Employers should remember that sexual harassment is not the only form of proscribed harassment.   Harassment based on other protected statuses, such as age, may also expose a company to liability. Therefore, a company should ensure that social networking sites and other social media outlets are not being used to inappropriately harass or discriminate against older individuals on the basis of their age, with the same vigilance that most companies now take toward sexual harassment issues.   Employment policies (including electronic and social media policies) should be effectively written, and managers effectively trained, to encompass conduct that could lead to an age harassment claim by an employee.

(2)        In a similar vein, the increased use of social media by older employees necessarily puts certain personal information in the public domain, about which an employer could not otherwise inquire in a personal interview – most obviously, the age of the potential or current employee. Care should be taken to insulate decision makers involved with hiring or firing, as well as direct supervisors, from age-related information so as not to contaminate an otherwise legitimate business decision.

(3)        There is a legal irony whereby the law prohibits employers from treating employees differently because of their age, yet requires employers to treat employees differently because of their age when it comes to written release and waiver agreements entered into with departing employees.   The federal Older Workers Benefit Protection Act of 1990 (“OWBPA”) imposes very specific requirements in order to have a valid release and waiver of rights executed by an employee who is 40 years of age or older.    Among the OWBPA’s requirements are that the release and waiver must expressly refer to claims and rights under the federal Age Discrimination in Employment Act, must only be given in exchange for consideration to which the individual is not otherwise entitled, must expressly advise the individual to consult with an attorney, and must contain a set period of time for the individual to consider the agreement and to revoke the agreement even after its execution. To the extent an employer engages in a RIF or other mass layoff, it would also be wise to ensure that any age-related impacts are thoroughly considered.

• Email This
• Print
• Comments/Questions
• Trackbacks

Are you tired of the press surrounding the Steven Slater incident with his employer, Jet Blue?   The coverage of Mr. Slater’s airplane exit due to apparent stress, and becoming fed up with an airline passenger, has been nothing short of remarkable.   Even his employer acknowledged the craziness of the situation through a blog post on its own web site: “It wouldn’t be fair for us to point out the absurdities in other corners of the industry without acknowledging when it’s about us.” And clearly, the final stanza of that employment sonata was never really in doubt.

However, the challenging cases are the ones that are not so extreme. It is unlikely that one of your employees will be opening the cabin door to your office at 30,000 feet.   One can dismiss the Slater story as just the latest introduction to America’s new reality show star, and be thankful that no one really got hurt.   Or, it can be a good lesson for those interested in social media and employment law. 

In other words, it is just as possible that an employee will express some acute stress or anger in a different way than Mr. Slater did.   For example, an employee can express anger or outrage generally or toward a particular co-worker in a blog post, on a social networking site, or a company’s intranet.   The stress caused by the troubled economy, or even a discrete tragic event such as 9/11, may lead to an increase in the number of employees whose productivity diminishes, and who may find social media as an easy and available outlet.   Additionally, increased stress coupled with the significant time spent in the office could provide an inappropriate portal to harassment or violence in the workplace.   If and when an employer becomes aware of an employee’s expression through social media, some measure of care should be taken before the employee’s words (and, perhaps the employee) are summarily dismissed.

It is readily acknowledged that employers do not have to provide a stress-free work environment.   Moreover, claims that one suffers from stress due to the personality of a particular supervisor have not been well-received by courts. However, under statutes such as the Family and Medical Leave Act (“FMLA”) and the Americans With Disabilities Act (“ADA”) (and their state and local counterparts), stress-related conditions and their manifestations may be protected either as a “serious health condition” or a “disability”, depending on their nature and severity, thereby thrusting the employer into a necessary course of action. 

Indeed, effective January 1, 2009, the ADA Amendments Act requires that the term disability “be construed broadly,” thus potentially affording greater rights to a greater number of employees.   This year alone saw an increase in stress-related claims. For example, in Pacenza v. IBM Corp., a terminated employee claimed he had a disability (post traumatic stress disorder) which manifested itself in, among other things, a compulsion to look at sexually explicit pictures on the Internet at work.   In Millea v. Metro-North Railroad Co., a court held that a jury properly found that an employee with a history of post traumatic stress disorder was entitled to rights under the FMLA after suffering an intense panic attack from a threatening call received from a supervisor.

Employer Take Away: What should every employer take away from this development?  

            (1)        Be aware of signs that an employee may be engaging in behavior or expression that could be considered protected under the law.   Employers are not required to be mind readers, and the obligation will be on the employee in most cases to provide adequate notice to the employer of a particular condition and the need for some response or assistance from the employer. However, social media has afforded employees a greater microphone for expression and greater security “behind the computer”, when they might not have expressed similar feelings in a personal, one-on-one setting.   Employers should have adequate policies in place, and should effectively train supervisors and managers to understand the implications of certain employee expression and the need to consider how the company should respond.

            (2)        Do not quickly dismiss employee expression through social media as being that of a “rogue” employee, or an employee who may just be letting off harmless steam on that particular day.   Employers, and particularly their supervisors and managers, need to understand what to look for, what their legal obligations may be, and the consequences of not following the law. Notwithstanding what may appear at first blush to be someone looking for his or her 15 minutes in the spotlight.

• Email This
• Print
• Comments/Questions
• Trackbacks

Your employee is being paid millions of dollars each year to perform his job. Right in the middle of today’s tasks, as he is about to receive instruction from his supervisor, your employee takes out his cell phone and posts a “tweet” on his feelings about his performance to all of his friends who have signed up to follow his twitter board.    Would you have a problem with that?

At least two employers did.   News surfaced last week that Eric Mangini, head coach of the NFL’s Cleveland Browns, has threatened to fine players for tweeting about events at training camp, and particularly during team meetings. This on the heels of the well-publicized action taken last year by the NBA’s Milwaukee Bucks. In that case, Bucks forward Charlie Villanueva apparently posted a message to his Twitter feed from his cell phone when he went into the locker room at halftime of a basketball game against the Boston Celtics.    According to reports, the tweet that was posted from Villanueva’s “CV31” screen name read: “In da locker room, snuck to post my twitt. We’re playing the Celtics, tie ball game at da half. Coach wants more toughness. I gotta step up.”

The good news is that Villanueva apparently stepped up, scoring a team-high 19 points to help the Bucks beat the Boston Celtics that afternoon. As for the Browns, well, we’ll see. However, like many employment law issues, the concern is not for the period in which everyone is winning; rather, the key is to address a potential problem before the bad times attendant to a losing streak risk damage to the entire team.

Twitter continues to dominate the popular culture, allowing users to post microblogs from a cell phone at the pace of an instant message, and has become a popular site for celebrities in the sports and entertainment world who have a following of gaggle that hang on to the tweeter’s every move and thought.   Twitter’s growth can be attributable to the ease in posting and reading the messages, as well as the fact that such posting and reading can be done anywhere one may be standing with a cell phone.

And therein lies the problem.   The implications of an NFL or NBA star’s use of Twitter apply equally to your employees. Your company might not be a sports franchise, and your office may not consist of a locker room.   However, your company should consider the implications of social networking sites like Twitter on your workplace and your employees.

Employer Take Away – What should every employer take away from this development?    One could chalk up these stories to simply more examples of young athletes being immature.   Or, they can serve to demonstrate, by extension, the realities of today’s technology and the expanding universe of modes of communication that, while increasing our ability to connect with others around the world, increase the risks right there in the four walls of your company’s office.

                        (1)        Recognize the effect that increased social networking has on employee productivity.   Even Milwaukee Bucks’ head coach recognized the productivity dilemma, when he commented at the time that “…anything that gives the impression that we’re not serious and focused at all times is not the correct way we want to go about our business.” While employers try to keep to the old adage that a “happy employee is a productive employee,” there should be limits to acceptable forms of happiness when they come at the expense of productivity because your employee is spending countless hours posting tweets when he should be performing his or her job duties.

                        While it is clearly more difficult to monitor an employee’s use of twitter on a personal cell phone that is not synchronized with the company’s systems, you should at the very least create a policy that prohibits excessive use of personal, social networking sites while on company time.    With regard to the use of social networking sites more generally, particularly those that are used from the company’s computers, you should be mindful of the applicable laws that govern an employer’s monitoring of employee activity.   Employers can, however, limit exposure under these laws, and in fact eliminate any reasonable expectation of privacy on the part of the employee, if employees are required to sign appropriately-worded documents acknowledging and consenting to the company’s monitoring policies.

                        (2)        Be mindful of the lack of control your company has over the use of sites such as Twitter.    In the good old days, one only had to worry about the informal musings of an employee on the rapid-fire system we once knew as “e-mail”. Now, there is an increased potential for workplace harassment that comes with the even great informality of Twitter.    There is a real concern over the fact that twitter posts from a personal cell phone may not be part of the company’s systems, and thus the company may not have the same ability to control or capture and save messages in the same way it can with e-mail, or even with instant messages that are delivered through the company’s computer system. Employers must nevertheless be sure that their harassment policies address the potential issues that arise in the context of inappropriate harassment and discrimination through the use of social networking sites, and be equally vigilant when responding to a complaint arising from communications made on those sites. 

                        (3)        Prevent employees from intentionally or inadvertently disclosing confidential or proprietary information due to the informal nature of communications on sites such as Twitter.   Again, it is critical for your company to make sure it has policies in place regarding the use and disclosure of company information, and that those policies specifically address the concerns attendant to these new social networking sites. 

                        (4)        Consider restrictions.   The trend toward making it easier for employees to engage in communications quicker and from anywhere in the world, increases the possibility that such employees claim to be “working” 24/7 while engaging in those communications. For example, even if your company does not authorize a non-exempt employee to work overtime, an employee must still be paid for hours worked (although a company certainly can discipline an employee for performing unauthorized overtime).    Without the proper policies in place, and without the appropriate measures taken to ensure that the company can control and stay on top of the number of hours worked by all non-exempt employees, the potential for exposure exists under federal and state wage payment laws.

• Email This
• Print
• Comments/Questions
• Trackbacks

                        One of the difficult things to predict with regard to the use of social media in the employment setting continues to be the extent to which traditional legal claims apply equally to new social media outlets.   We continue to advise employers that it is imperative to ensure that care is also taken to create policies and train employees on the use of social media in and out of the office setting, and not to let the informality and ease of the Internet lull employers into a false sense of security.   On July 22, 2010, a New York Supreme Court Judge applied the tort of defamation to statements on Facebook in a case that offers an important message to employers.

                        The case of Finkel v. Dauber (New York Supreme Court, Nassau County) centered on statements posted by a Facebook group known as “90 Cents Short of a Dollar.” Plaintiff alleged that she was defamed by the group’s postings that stated “unbeknownst to many, [plaintiff] acquired AIDS while on a cruise to Africa” and then “persisted to screw a baboon which caused the epidemic to spread.”   The postings further defamed plaintiff, she alleged, by stating “[w]hile in Africa she was seen fucking a horse.”   And other intelligent banter.

                        The court first acknowledged that even posts on a social networking site can be subject to the elements of a legal claim for defamation. Thus, an aggrieved individual must identify, among other things, a false “statement of fact” that was published without authorization by the subject of the statement. However, the court in Finkel noted that “’rhetorical hyperbole’ or ‘vigorous epithet’ will not suffice.” In determining whether liability lies, “context is key” and one must weigh the “broader social context or setting surrounding the communication[.]”   Under that backdrop, the court in Finkel ultimately dismissed plaintiff’s defamation claim, stating:

“A reasonable reader, given the overall context of the posts, simply would not believe that the plaintiff contracted AIDS by having sex with a horse or a baboon or that she contracted AIDS from a male prostitute who also gave her crabs and syphilis, or that having contracted sexually transmitted diseases in such a manner she morphed into the devil.   Taken together, the statements can only be read as puerile attempts by adolescents to outdo each other. While the posts display an utter lack of taste and propriety, they do not constitute statements of fact.”

                        Yes, this may be an extreme case. And the ultimate result of Finkel is obviously a good one for the party defending the claim of liability. But do you want to take the chance in the next case by not being proactive in today’s social media world?    Even though plaintiff here did not prevail, I think the message is clear.  

Employer Take Away – What should every employer take away from this development?

(1)       Informality is not a defense. Although context will be one factor to consider, the fact that statements are made or conduct occurs on a more informal social networking site or blog does not insulate the statements or conduct from potential liability. Employers must make sure that their written policies and employee training emphasize that informality can breed an increased risk of liability for the company, and that traditional legal theories (and employment prohibitions) apply equally to web-based statements and conduct.

(2)        Ease is not a defense either.   The ease with which employers and employees alike may converse, obtain information, and share private experiences does not mean that “old rules” do not still apply. It is still discrimination to take action because of one’s pregnancy or one’s participation in a gay and lesbian organization, even if the employer only learned that information from reading a profile page. Just as it still may be sexual harassment if the offending chatter took place on a Facebook “wall-to-wall”.   Employment policies and practices must consider whether employment-related decisions should be based, in whole or in part, on information obtained through social media sites in the first place, and, if so, which company officials should be involved in the information gathering and decision making processes.

• Email This
• Print
• Comments/Questions
• Trackbacks

                         The circumstances surrounding the forced resignation this month of Shirley Sherrod from the United States Department of Agriculture highlights both the positives and the perils of making employment-based decisions based on information obtained from the Web.

                        We all know that Ms. Sherrod was forced to resign after a blogger posted limited excerpts of a speech she gave to the NAACP.   Those excerpts depicted her as a racist, some argued, resulting in various government and non-government officials calling for her to leave her post. However, once the full video was reviewed, it became clear that what Ms. Sherrod had been describing to the NAACP was, in fact, reflective of just the opposite; that her story was an example of one who moved beyond race when it came to helping someone in need.   The backlash continues, as many in the current administration have gone so far as to offer her a new job in the Department.

                        Employers – both private and public - should heed this valuable lesson. We are all more than aware of the plethora of information that can be obtained about current employees, and even inquiring job applicants.   As easy as it is to get this information, it is critical that employers do not fall into the lazy trap in order to avoid potential liability.   For one, employers may learn more than they really need to know (or should know) about lawful activities in which current or potential employees are engaging, as well as about organizations in which they are active or personal characteristics that are not otherwise apparent from a resume or “normal” job interview.  

                        Second, the information obtained, and relied upon for a particular employment-related decision, may be, simply, wrong.   Perhaps only an edited excerpt of a larger source of information was obtained, or perhaps the subject of the information turns out to be an individual other than the current or potential employee. Relying on that information as the basis for an adverse job action is, at best, embarrassing, and, at worst, a potential liability exposure risk.

Employer Take Away – What should every employer take away from this development?

(1) Make sure you know exactly what you are looking for when it comes to seeking Web information about a current or potential employee, and that you have assigned the appropriate individual to obtain that information at the right time in the decision-making process.

(2) Make sure any employment-related decision resulting from Web-based information is fully supported and documented.   Do not let the informalities and ease of the Internet lull you into a failure to do your due diligence.

• Email This
• Print
• Comments/Questions
• Trackbacks